Family law is difficult. It is difficult for the couple, children, lawyers and even difficult for the system.
Family dissolutions are incredibly personal, painful, and emotional. The court process exposes all of that for the entire world to see. Personal and emotional issues usually fuel litigation, especially for those who can afford it. For those who can't, the process stalls, and legal obligations are left in limbo.
Clients separating, lawyers practicing, and judges adjudicating recognize the challenges. There must be a better way.
Well, on October 17th, 2017, the Manitoba Court of Appeal released a decision that triggered a review of our family law system. Chief Judge Chartier, our province's top judge, did not mince words.
In the court's decision in Dunford v Birnboim, Justice Chartier's opening paragraph is as follows:
This case highlights everything that is wrong with our family law court system: an adversarial system, where one member of the family is pitted against the other, where lawyers advocate what they perceive to be best for their respective client, not necessarily the family unit, and where the cooperation necessary to deal with the issues is weakened by the inherently combative and potentially lengthy nature of a court proceeding.
The following day, the province was establishing an advisory committee to review how family law is handled in Manitoba; Allan Fineblit, the former law society CEO, chairs the committee. I have a great deal of respect for Allan. As CEO of the law society, he was well aware of the problems within our system. I believe (or at least, I hope) his presence will mean that the committee's recommendations will be well thought out.
Interestingly, the press release ended with the following statement:
The committee will report back to the minister in early 2018 with a detailed framework for a new administrative model for family law.
The minister appears to have given the committee a mandate to establish a family law system outside of the courts. An administrative model is a separate legal framework. Take, for example, the Manitoba Tenancies Branch (MTB). Tenants or landlords who have legal grievances cannot go to court. Rather they must take their problems to the MTB, where MTB officers propose solutions. If necessary, a hearing before a panel will be heard, and usually, lawyers are not involved (although they can be).
Courts are not involved in administrative tribunals. The whole process is governed by the established process. Autopac is another example. In Manitoba, we no longer sue insurance companies for personal injuries caused by automobile accidents. Rather, through the legislation, the public insurer adjudicates on responsibility and pays out awards for injuries. Lawyers and judges have been removed from the process.
In Manitoba, there are hundreds of administrative boards. Courts and lawyers have largely been removed or at least displaced. Panel members are appointed by the government and can be experts in that particular field (but not necessarily so).
One can imagine a new family law system that moves the courts' process to a hearing officer. Rather than obtaining legal advice, a divorcing couple would report to the "Family Law Branch," where they would fill out forms and provide information on salary, pension, and family assets. A hearing officer would review the information and would make a decision based on established guidelines. If one of the parties was not satisfied, they would request a hearing with a panel of three experts. The panel's decision would be final.
Lawyers would not be required in the initial process. If the parties were "satisfied" with the first officer's decision, the matter would be concluded without any legal assistance provided by lawyers. Lawyers would only be involved in hearings.
I am cautiously optimistic that we are on the right track. A "bureaucratized" system would blunt the emotional aspect of family law. Parties who use the court process to "punish" their former spouse would no longer be able to do so. While it may prove frustrating for some, as most bureaucratic processes can be, the "one track for all" approach is appealing.
Time will tell. A new process will undoubtedly bring new challenges. However, the current system is broken. I believe that any improvement will be a success. Hopefully, the recommendations will be systematic and will not collect dust on a government shelf.
This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact Philippe Richer at 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).
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